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Judge Upsets Studios' Ban On Film Copies for Critics

By RANDY KENNEDY

Published: December 6, 2003

A Federal judge yesterday overturned a ban by the Motion Picture Association of America on the distribution of copies of new movies to critics and groups that present awards. He ruled that in trying to fight piracy with the ban the group was hurting small filmmakers.

The association, which represents the major movie studios, argued that the copies -- mailed out as a winter rite in Hollywood when the awards season begins -- often ended up in the hands of pirates whose bootleg versions were for sale on the street within days, even while the movies were still in theaters. After first imposing a total ban, the association said it would send copies of movies only to people who vote on the Academy Awards.

Many independent filmmakers argued that the ban, imposed in September, had severely hurt their films' chances of winning awards and other accolades that could help them at the box office. Because many small filmmakers rely on the big studios to distribute their movies, they too were bound by the ban on sending out the copies, known in the industry as screeners.

Judge Michael B. Mukasey of United States District Court in Manhattan said he was persuaded that smaller filmmakers, with limited budgets for promoting their work, would suffer if their screeners were not distributed. Because so many movies are released toward the end of the year, it is often hard for critics and prize-givers to see them all in theaters, and they have relied on the screeners for many years.

''Plaintiffs have shown they are at risk to suffer losses in revenue as a result of the screener ban,'' Judge Mukasey said in ruling that the major studios' agreement to impose the ban violated federal antitrust law.

The independent filmmakers who filed the suit cheered the judge's decision. ''It allows for all films to continue to be recognized on the basis of their merits, regardless of budgets, marketing resources, distribution, content or other elements,'' said a statement from the group, which included producers of small-budget movies like ''American Splendor'' (Good Machine), ''Lost in Translation'' (Elemental Films) and ''Thirteen'' (Antidote).

Jack Valenti, the president and chief executive of the picture association, said it would appeal. ''From Day 1 the screener policy has been about one thing: preserving the future of our industry for filmmakers of all sizes by curtailing piracy,'' Mr. Valenti said in a written statement. ''We know without dispute that in the past screeners have been sources for pirated goods both domestically and overseas.''

While the fight over the issue might seem technical to the average moviegoer, it has been a big deal in Hollywood. Some independent filmmakers have called the ban a covert way for major studios to undermine the efforts of smaller movies to gain awards and other attention, which often mean the difference between financial success and failure for a small film. In court papers, the small filmmakers argued that unless the ban was lifted immediately, ''critical exposure, momentum and 'buzz' opportunities'' would be irreparably missed before the Oscars are presented on Feb. 29.

Mr. Valenti announced the ban in late September after the seven major studios agreed on the idea. After an outcry, he relented somewhat, deciding that videotapes (but not DVD's, which are much easier to duplicate quickly and well) could be mailed to the 5,600 members of the Academy of Motion Pictures Arts & Sciences, who vote on the Oscars.

The members were required to sign a pledge not to let the tapes out of their control, and they risked losing their membership if a tape was found to have been bootlegged. Each tape was also given a code to appear on the screen to make it easier to trace back to a particular academy member.

But the difficulty in staying ahead of pirates became apparent almost immediately. A screener of ''Pieces of April'' was mailed to academy members at the end of November and has already showed up on the Internet with the special code unreadably blurred.

While conceding that screeners have led to piracy, independent filmmakers argued that the cost of banning them outweighed the benefits to many movies.

''This was a solution to a problem that benefited only one segment of the industry and hurt a lot of other segments,'' said Ted Hope, who testified in the case and who helped produce ''American Splendor,'' a highly praised small-budget movie.

Mr. Hope said that when he heard the decision yesterday he called his office to ask distributors of his films to get screeners into the mail immediately. He said that at first he felt a bit like Erin Brockovich winning the big case, but then he considered the appeal and wondered ''whether this whole thing will have a kind of 'indie' ending where nothing really gets resolved.''